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EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated as of
October 1, 1998, between Xxx Communications, Inc., a Delaware corporation
("CCI"), on the one hand, and G.C. Investments, a Nevada limited liability
company, and Xxxxxxx X. Xxxxxxxxx as Trustee of the Unified Credit Trust
created under a Declaration of Trust dated December 6, 1988 (collectively, the
"Stockholders"), on the other hand.
WHEREAS, pursuant to an Agreement and Plan of Merger, dated May 4, 1998
(the "Merger Agreement"), by and among CCI, Xxx Communications Las Vegas, Inc.,
a Delaware corporation ("Merger Sub") and a wholly owned subsidiary of CCI,
Prime South Diversified, Inc., a Delaware corporation ("PSD") and certain of
the shareholders of PSD, PSD has agreed to merge (the "Merger") into Merger
Sub, and pursuant thereto shares of Class A Common Stock of PSD, par value
$0.01 per share, and shares of Class B Common Stock of PSD, par value $0.01 per
share (collectively, "PSD Stock"), held by the Stockholders will be converted
into cash, shares of Class A Common Stock, par value $1.00 per share, of CCI
("Common Stock") and shares of Series A Convertible Preferred Stock, par value
$0.01 per share, of CCI (the "Series A Preferred Stock"); and
WHEREAS, pursuant to a Voting Agreement dated as of May 4, 1998, by and
among CCI and all of the shareholders of PSD, CCI has agreed to enter into this
Agreement to provide certain registration rights to the Stockholders, effective
as of the date hereof, with respect to the shares of Common Stock to be
received by them in the Merger and as a result of the conversion of the Series
A Preferred Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
Section 1. Definitions. (a) As used herein, the following terms shall
have the following meanings:
(i) CCI Securities: shall mean shares of Common Stock,
Series A Preferred Stock or any other securities of CCI.
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(ii) Registrable Securities: (A) the shares of Common
Stock to be acquired by the Stockholders at the Effective Time pursuant
to the Merger Agreement or upon conversion of the Series A Preferred
Stock into Common Stock in accordance with the terms thereof and (B)
any CCI Securities issued or issuable with respect to any Common Stock
referred to in subdivision (A) by way of stock dividend or stock split
or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise.
(Notwithstanding anything herein contained, the Series A Preferred
Stock shall not be considered as or included in Registrable
Securities.) As to any particular Registrable Securities, once issued
such securities shall cease to be Registrable Securities when (x) a
registration statement with respect to the sale of such securities
shall have become effective under the Securities Act of 1933, as
amended (the "Securities Act") and such securities shall have been
disposed of in accordance with such registration statement, (y) they
shall have been distributed to the public pursuant to Rule 144 or Rule
145 (or any successor provision) under the Securities Act or (z) they
shall have ceased to be outstanding.
(iii) Registration Expenses: all expenses incident to
CCI's performance of, or compliance with, this Agreement, including,
without limitation, all registration, filing and National Association
of Securities Dealers, Inc. fees, all fees and expenses of complying
with securities or blue sky laws, the fees and disbursements of counsel
for CCI and of its independent public accountants, including the
expenses of any special audits or "comfort" letters required by or
incident to such performance and compliance, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the
costs and expenses of CCI, its officers, directors, employees, counsel
and other agents related to participation by CCI in any "road show,"
presentations, premiums and other costs or policies of insurance
obtained by CCI against liabilities arising out of the public offering
of Registrable Securities being registered and any fees and
disbursements of underwriters customarily paid by issuers, but
excluding fees and disbursements of counsel retained by any of the
Stockholders, premiums and other costs of policies of insurance
obtained by the Stockholders against liabilities arising out of the
public offering of the Registrable Securities being registered, any
fees and disbursements of underwriters customarily paid by sellers of
securities who are not the issuers of such securities, all underwriting
discounts and commissions and transfer taxes, if any, relating to
Registrable Securities.
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(b) Capitalized terms used herein but not otherwise defined
herein shall have the same meaning as in the Merger Agreement.
Section 2. Registration on Request. (a) Request. During the period
commencing on the date hereof and ending on the tenth anniversary of the date
hereof (the "Registration Period"), Stockholders holding an aggregate of at
least 30% of the Registrable Securities outstanding as of the date of such
Request (as defined below) (the "Electing Holders") shall have the right upon
written notice to CCI (a "Request") to request that CCI effect the registration
under the Securities Act of all or part of the Registrable Securities then
owned by such Stockholder(s) (but in any event not less than an aggregate
number of shares of Common Stock, as adjusted to reflect any stock splits,
combinations of shares, reclassifications or comparable transactions, as shall
constitute at least 30% of the Registrable Securities outstanding as of the
date of such Request, or such lesser number of shares as shall then constitute
all of the Registrable Securities then outstanding taking into account all
Registrable Securities to be included in such registration); provided, however,
CCI shall not under any circumstance be obligated to effect any such
registration if the Registrable Securities which are the subject of any such
Request as of the date of such Request have a value of less than $50,000,000.
Upon receipt of any such Request, CCI will provide notice of such Request in
accordance with Section 9 (the "Registration Notice") to each of the
Stockholders not included in such Request and will use all reasonable efforts
(subject to Section 5(b)) to effect such registration of the Registrable
Securities which CCI has been so requested to register in the Request or by any
other Stockholder within 60 days after delivery of the Registration Notice (the
Stockholders requesting registration pursuant to this Section 2 or Section 3
hereof shall collectively be referred to as the "Participating Stockholders").
The Stockholders collectively shall be entitled to three Requests during the
Registration Period pursuant to this Section 2, provided that, regardless of
whether any securities are offered or sold pursuant thereto (other than as a
result of any action by CCI pursuant to Section 5(b)), no more than one Request
shall be made by any Stockholder during any twelve month period during the
Registration Period.
CCI may include in any such registration other securities for
sale for its own account or for the account of any other Person; provided that,
if the managing underwriter for the offering shall determine that the number of
shares proposed to be offered in such offering would be reasonably likely to
adversely affect such offering, then the securities to be sold by the
Stockholders shall be included in such registration before any securities
proposed to be sold for the account of CCI or any other Person and provided,
further, that the Stockholders agree that any reduction in the
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number of securities to be offered by the Stockholders pursuant to any Request
shall be on a pro rata basis, except that the securities offered by the
Electing Holders initiating such Request shall not be reduced to less than 50%
of such securities included in the initial Request unless no securities of any
other Stockholder are included therein. The Electing Holders shall be
responsible for any calculations relating to the foregoing and shall set forth
such calculations in a certificate to be delivered to CCI, on which certificate
CCI shall be entitled to rely.
(b) Registration Statement Form. CCI shall effect any
registration requested under this Section 2 by the filing of a registration
statement on such form as CCI may determine; provided that CCI shall not be
obligated to register any securities on a "shelf" registration statement
pursuant to Rule 415 under the Securities Act (or any successor provisions of
such Act) or otherwise to register securities on a continuous or delayed basis.
(c) Expenses. The Registration Expenses in connection with any
registration which may be requested under this Section 2 shall be borne by CCI.
The Participating Stockholders shall bear the expense of fees and disbursements
of counsel retained by the Participating Stockholders, premiums and other costs
of policies of insurance obtained by the Participating Stockholders against
liabilities arising out of the public offering of the Registrable Securities,
any fees and disbursements of underwriters customarily paid by sellers of
securities, all underwriting discounts and commissions and transfer taxes, if
any, relating to Registrable Securities, and the costs and expenses of any of
the Participating Stockholders related to participation by any of them in any
"road show" presentations, and any other expenses that do not constitute
Registration Expenses.
(d) Selection of Underwriters. The managing underwriter for any
registration requested under this Section 2 effected by means of a firm
commitment underwriting shall be selected by the Participating Stockholders,
and shall be reasonably acceptable to CCI and CCI shall have the right to
select the co-lead underwriter, which underwriter shall be reasonably
acceptable to the Participating Stockholders.
Section 3. Piggyback Registrations. (a) Request for Registration. If
CCI proposes to file a registration statement under the Securities Act prior to
the expiration of the Registration Period with respect to an offering by CCI or
any holder of any CCI Securities (other than in connection with the
registration of CCI Securities issuable pursuant to an employee stock option,
stock purchase or similar plan or pursuant to a merger, exchange offer or a
transaction of the type specified in
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Rule 145(a) under the Securities Act), then CCI shall in each case give written
notice of such proposed filing to each Stockholder at least twenty (20)
business days before the anticipated filing date, and such notice shall
describe in detail the proposed registration and distribution (including those
jurisdictions in which registration under the securities or blue sky laws is
intended) and shall offer each Stockholder the opportunity to register any of
such Stockholder's Registrable Securities pursuant to such registration. Each
Stockholder shall have the right to include any of its Registrable Securities
in such offering by giving written notice thereof to CCI within ten (10)
business days after receipt of CCI's notice associated with such offering. If
such Stockholder elects to include any of its Registrable Securities in such
offering, CCI shall use all reasonable efforts to register such Registrable
Securities under the Securities Act and include such Registrable Securities in
such offering on the same terms and conditions as any CCI Securities that are
similar to such Registrable Securities which are included therein and otherwise
on terms that constitute the economic equivalent of the terms of inclusion of
any CCI Securities in such offering (each, a "Piggyback Registration");
provided, however, that CCI shall not be required under this Section 3 to
include any Registrable Securities of any Stockholder in any such offering,
unless such Stockholder accepts the terms of the underwriting as agreed upon
between CCI and the underwriter or underwriters selected by CCI for such
offering (collectively, the "CCI Underwriter") and performs its obligations
thereunder. Notwithstanding the foregoing, if the CCI Underwriter delivers a
written opinion that the total amount or kind of securities which any
Participating Stockholders, CCI and any other Persons intend to include in such
offering is sufficiently large to affect materially and adversely the
distribution of such securities, then the number of shares or units of
Registrable Securities to be offered for the account of each such Participating
Stockholder shall be reduced pro rata (based on the number of Registrable
Securities proposed to be sold by each such Participating Stockholder pursuant
to such offering) to the extent necessary to reduce the aggregate amount of
securities included in such offering to the amount recommended by the CCI
Underwriter. Each Participating Stockholder shall be permitted to withdraw all
or any portion of its Registrable Securities from a Piggyback Registration at
any time prior to the effective date of such Piggyback Registration. CCI shall
bear all Registration Expenses in connection with any Piggyback Registration
whether or not such Piggyback Registration becomes effective.
(b) No Registration of CCI Securities. CCI may, without the
consent of any Stockholder, delay, suspend, abandon or withdraw any
registration by CCI that is not a registration pursuant to Section 2 hereof and
any related proposed offering or other distribution in which any Stockholder
has requested inclusion of such Stockholder's Registrable Securities pursuant
to this
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Section 3; provided that the applicable Participating Stockholders shall be
entitled to continue such registration as a registration requested pursuant to
Section 2 following any such withdrawal by CCI to the extent that such
registration by the Participating Stockholders making such election would
otherwise satisfy the requirements of Section 2 and, provided, further, that
CCI shall be obligated to pay the Registration Expenses to the extent incurred
in connection with such proposed registration.
Section 4. Registration Procedures. If CCI is required to use all
reasonable efforts to effect the registration of Registrable Securities under
the Securities Act as provided in Section 2, CCI will as expeditiously as
possible:
(i) prepare and (within 45 days after the receipt of a
Request) file with the Securities and Exchange Commission (the "SEC")
the requisite registration statement to effect such registration and
use all reasonable efforts to cause such registration statement to
become effective, provided that before filing such registration
statement or any amendments thereto, CCI will furnish to the counsel
selected by the Participating Stockholders copies of all such documents
proposed to be filed, which documents will be subject to the review of
such counsel before any such filing is made, and CCI will comply with
any reasonable request made by such counsel to make changes in any
information contained in such documents relating to the Participating
Stockholders;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to maintain the effectiveness
of such registration and to comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such registration statement until the earliest of (A) the
termination of this Agreement pursuant to Section 17, (B) such time as
all of such securities have been disposed of and (C) the date which is
60 days after the date of initial effectiveness of such registration
statement;
(iii) furnish to the Participating Stockholders such
number of conformed copies of such registration statement and of each
such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus contained in such
registration statements and any supplements thereto and any other
prospectus filed under Rule 424 under the Securities Act, in conformity
with the requirements of the
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Securities Act, and such other documents, including documents
incorporated by reference, as the Participating Stockholders may
reasonably request;
(iv) use all reasonable efforts to register or qualify
all Registrable Securities registered pursuant to such registration
statement under such other securities or blue sky laws of such
jurisdictions as the Participating Stockholders shall reasonably
request, to keep such registration or qualification in effect for so
long as such registration statement remains in effect, and take any
other action which may be reasonably necessary or advisable to enable
the Participating Stockholders to consummate the disposition in such
jurisdictions of the securities owned by the Participating
Stockholders, except that CCI shall not for any such purpose be
required to qualify generally to do business as a foreign corporation
in any jurisdiction wherein it would not but for the requirements of
this subdivision (iv) be obligated to be so qualified, to be subject to
taxation or to consent to general service of process in any such
jurisdiction;
(v) use all reasonable efforts to cause all Registrable
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the Participating Stockholders to consummate the
disposition of such Registrable Securities;
(vi) if such registration includes an underwritten public
offering, furnish to the Participating Stockholders a signed
counterpart, addressed to the Participating Stockholders (and the
underwriters), of (x) an opinion of counsel for CCI, dated the date of
the closing under the underwriting agreement, and (y) a "comfort
letter," dated the effective date of such registration statement (and a
supplement to such letter as of the closing date of such offering),
signed by the independent public accountants who have certified CCI's
financial statements included in such registration statement, covering
substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to the
underwriters in underwritten public offerings of securities and, in the
case of the accountants' letter, such other financial matters, as the
Participating Stockholders (or the underwriters, if any) may reasonably
request;
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(vii) promptly notify the Participating Stockholders at
any time when CCI becomes aware that a prospectus relating to
Registrable Securities is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made, and at the request of the Participating Stockholders
(and subject to Section 5(b)(ii)) promptly prepare and furnish to the
Participating Stockholders a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances under which they were made;
(viii) otherwise use all reasonable efforts to comply
with the Securities Act and the Securities and Exchange Act of 1934, as
amended (the "Exchange Act") and with all applicable rules and
regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the effective date
of such registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act, and not file any
amendment or supplement to such registration statement or prospectus to
which the Participating Stockholders shall have reasonably objected on
the grounds that such amendment or supplement does not comply in all
material respects with the requirements of the Securities Act;
(ix) provide a transfer agent and registrar for all
Registrable Securities covered by such registration statement not later
than the effective date of such registration statement; and
(x) use all reasonable efforts to list all Common Stock
covered by such registration statement on any securities exchange on
which any of the Common Stock is then listed.
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In the case of any underwritten offering involving at least $100
million in fair market value of shares of Common Stock (as estimated by CCI in
good faith based on the market value of the Shares at the time of the Request)
held by the Stockholders, upon the request of the Participating Stockholders,
CCI will participate in customary "road show" presentations as reasonably
requested by the managing underwriter. The identity of the officers of CCI
participating therein (which shall include senior executive officers) and the
number of cities visited shall be reasonably acceptable to CCI.
CCI may require the Participating Stockholders to furnish CCI
such information regarding the Participating Stockholders and the distribution
of such securities as CCI may from time to time reasonably request for the
purpose of registering the Registrable Securities pursuant to a Request
hereunder.
Each Stockholder agrees, by acquisition of the Registrable
Securities, that upon receipt of any notice from CCI of the happening of any
event of the kind described in subdivision (vii) of this Section 4, such
Participating Stockholder will forthwith discontinue its disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until the Participating Stockholder's receipt of the
copies of the supplemented or amended prospectus contemplated by subdivision
(vii) of this Section 4 and, if so directed by CCI, will deliver to CCI (at
CCI's expense) all copies of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice. Any delay pursuant to
this paragraph shall toll on a day for day basis the running of the 60 day
period referred to in Section 4(ii) hereof.
Section 5. (a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering of Registrable Securities by the
Participating Stockholders under a registration requested pursuant to Section
2, CCI will enter into a customary underwriting agreement with such
underwriters for such offering, to contain such representations and warranties
by CCI and such other terms as are customarily contained in agreements of this
type, including, without limitation, indemnities to the effect and to the
extent provided in Section 7. The Participating Stockholders shall be a party
to such underwriting agreement and may, at their option, require that any or
all of the representations and warranties by, and the other agreements on the
part of, CCI to and for the benefit of such underwriters shall also be made to
and for the benefit of the Participating Stockholders and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of the
Participating
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Stockholders. The Participating Stockholders shall not be required to make any
representations or warranties to or agreement with CCI or the underwriters
other than representations, warranties or agreements regarding the
Participating Stockholders, their ownership of the Registrable Securities and
their intended method of distribution and any other representation required by
law.
(b) Holdback Agreement; Postponement. (i) The Stockholders agree
by acquisition of the Registrable Securities, if so required by the managing
underwriter, not to effect any public sale or distribution of such securities
during the seven days prior to and the 90 days after any underwritten offering
of securities by CCI (either for its own account or for the benefit of the
holders of any securities of CCI) has become effective (or such longer period
of time that the managing underwriter requires of other affiliates of CCI).
(ii) CCI may postpone any registration which is requested
pursuant to Section 2 or delivery of a prospectus or supplement or
amendment pursuant to Section 4(vii) if it determines that in view of
the advisability of deferring public disclosure of material corporate
developments, the disclosures required to be made pursuant thereto
would not be in the best interests of CCI at that time. In the event
CCI makes any such election, each Stockholder agrees to keep
confidential the fact of such election and any information provided by
CCI in connection therewith. No single postponement pursuant to this
Section 5(b)(ii) of any registration which is requested pursuant to
Section 2 or delivery of a prospectus or supplement or amendment
pursuant to Section 4(vii) shall exceed 90 days and all such
postponements shall not exceed 180 days in the aggregate.
Section 6. Preparation of Registration Statement. In connection with
the preparation and filing of the registration statement under the Securities
Act, CCI will give the Participating Stockholders, their underwriters, if any,
and their respective counsel, the opportunity to participate in the preparation
of such registration statement, each prospectus included therein or filed with
the SEC, and each amendment thereof or supplement thereto. Such opportunity to
participate shall include reasonable access for purposes of due diligence,
subject to the execution and delivery of appropriate confidentiality
agreements.
Section 7. Indemnification. (a) Indemnification by CCI. In the event of
any registration of any Registrable Securities of CCI under the Securities Act,
CCI will, and hereby does, indemnify and hold harmless the Participating
Stockholders, each other Person who participates as an
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underwriter in the offering or sale of such securities and each other Person
who controls any such underwriter within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Participating
Stockholders or any such underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration statement
under which such Registrable Securities were registered under the Securities
Act, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading. CCI will reimburse
the Participating Stockholders and each such underwriter and controlling person
for any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such losses, claim, liability, action or
proceedings; provided that CCI shall not be liable in any such case to the
extent that any such loss, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon (i) an untrue
statement or alleged untrue statement or omission or alleged omission in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to CCI by a Participating Stockholder for
use in the preparation thereof, (ii) the use of any prospectus after such time
as the obligation of CCI to keep the same effective and current has expired, or
(iii) the use of any prospectus after such time as CCI has advised the
Participating Stockholder that the filing of a post-effective amendment or
supplement thereto is required, except such prospectus as so amended or
supplemented, and provided, further, that CCI shall not be liable to any Person
who participates as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such underwriter within
the meaning of the Securities Act in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of such Person's failure to send or give a copy of the final
prospectus or supplement to the Persons asserting an untrue statement or
alleged untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of Registrable Securities to such Person if
such statement or omission was corrected in such final prospectus or
supplement. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Participating Stockholders or any
such underwriter or controlling person and shall survive the transfer of such
securities by the Participating Stockholders.
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(b) Indemnification by the Participating Stockholders. CCI may
require, as a condition to including any Registrable Securities of a
Participating Stockholder in any registration statement filed pursuant to
Section 2 or Section 3, that CCI shall have received an undertaking reasonably
satisfactory to it from such Participating Stockholder to indemnify and hold
harmless (in the same manner and to the same extent as set forth in subdivision
(a) of this Section 7) CCI, each other Participating Stockholder, each director
and officer of CCI and of each other Participating Stockholder, and each other
Person, if any, who controls CCI or any other Participating Stockholder, within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, with respect to any untrue statement or alleged untrue statement
of a material fact in, or omission or alleged omission to state a material fact
from, such registration statement, any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement
thereto, if such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to CCI by such Participating Stockholder for use in the
preparation of such registration statement preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; provided, however,
that a Participating Stockholder shall not be liable to the extent that the
losses, liabilities or expenses exceed the net proceeds received by such
Participating Stockholder from the sale of Registrable Securities in such
registration or that arise out of or are based upon (i) the use by CCI or
another Participating Stockholder of any prospectus after such time as the
obligation of CCI to keep the same effective and current has expired or (ii)
the use by CCI or another Participating Stockholder of any prospectus after
such time as such Participating Stockholder has advised CCI that the filing of
a post-effective amendment or supplement thereto is required with respect to
any information contained in such prospectus concerning such Participating
Stockholder, except such prospectus as so amended or supplemented. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of CCI, each other Participating Stockholder, or any such
director, officer, or controlling person and shall survive the transfer of such
securities by the Participating Stockholders.
(c) Notice of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 7,
such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action; provided that the failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under the preceding subdivisions of this Section 7, except
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to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgement a
conflict of interest between such indemnified and indemnifying parties may
exist in respect of such claim, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof, other than reasonable costs of investigation.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 7 (with appropriate
modifications) shall be given by CCI and the Participating Stockholders with
respect to any required registration or other qualification of securities under
any Federal or state law or regulation of governmental authority other than the
Securities Act.
(e) Indemnification Payments. The indemnification required by
this Section 7 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(f) Contribution. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of the expense, loss, damage or liability, (i) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other
(determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission relates to information supplied
by the indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission), or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law or provides a lesser sum to
the indemnified party than the amount hereinafter calculated, in the proportion
as is appropriate to reflect not only the relative fault of the indemnifying
party and the indemnified party, but also the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, as
well as any other relevant equitable considerations. No indemnified party
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the
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Securities Act) shall be entitled to contribution from any indemnifying party
who was not guilty of such fraudulent misrepresentation.
Section 8. Covenants Relating to Rule 144/145. CCI will prepare and
file in a timely manner, information, documents and reports in compliance with
the Exchange Act so as to comply with the requirements of such Act and the
rules and regulations thereunder and will, at its expense, forthwith upon the
request of the Stockholders, deliver to the Stockholders a certificate, signed
by CCI's principal financial officer, stating (a) CCI's name, address and
telephone number (including area code), (b) CCI's Internal Revenue Service
identification number, (c) CCI's SEC file number, (d) the number of shares of
Common Stock outstanding as shown by the most recent report or statement
published by CCI, and (e) whether CCI has filed the reports required to be
filed under the Exchange Act for a period of at least 90 days prior to the
dates of such certificate and in addition has filed the most recent annual
report required to be filed thereunder. If at any time CCI is not required to
file reports in compliance with either Section 13 or Section 15(d) of the
Exchange Act, CCI at its expense will forthwith, upon the written request of
the Stockholders, make available adequate current public information with
respect to CCI within the meaning of paragraph (c)(2) of Rule 144 of the
General Rules and Regulations promulgated under the Securities Act.
Section 9. Notices, etc. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or otherwise), when delivered by
telecopy if receipt is confirmed by return telecopy, or five days after being
mailed by registered or certified mail, return receipt requested, in each case
to the applicable addresses set forth below:
If to CCI: Xxx Communications, Inc.
0000 Xxxx Xxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Secretary
Telecopier: (000) 000-0000
with a copy to: Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
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If to Stockholders: c/o G.C. Investments
Xxxxxxx Xxxxxxxxx, Trustee
c/o Las Vegas Sun
000 Xxxxx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
with a copy to: Xxxxxxxxxx Xxxxx Xxxxxx & Xxxxxxxxxx, P.C.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
or to such other address as such party shall have designated by notice so given
to each other party.
Section 10. Amendments, Waivers, etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing signed by the party against whom enforcement
is sought or as expressly provided in Section 17. The failure of any party to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance
by any other party with its obligations hereunder, and any custom or practice
of the parties at variance with the terms hereof, shall not constitute a waiver
by such party of its right to exercise any such or other right, power or remedy
or to demand such compliance.
Section 11. Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties relating to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter. The provisions of this Agreement do not conflict with any other
registration rights agreement to which CCI is a party (it being understood that
CCI makes no representation with respect to any registration rights or similar
agreements to which PSD or any of its Subsidiaries is subject).
Section 12. Severability. If any term of this Agreement or the
application thereof to any party or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such term to the other parties or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by
applicable law.
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Section 13. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties and
their respective successors and assigns; provided that neither the rights nor
the obligations of any party may be assigned or delegated without the prior
written consent of the other parties.
Section 14. Governing Law. This Agreement and all disputes hereunder
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware.
Section 15. Name, Captions. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall
not affect the interpretation or construction hereof.
Section 16. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one instrument. Each counterpart may consist of
a number of copies each signed by less than all, but together signed by all,
the parties hereto.
Section 17. Termination. This Agreement shall terminate and be of no
further force and effect upon the expiration of the Registration Period;
provided that, notwithstanding this Section 17, the provisions of Section 7
shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
XXX COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Vice President Accounting
& Financial Planning
G.C. INVESTMENTS
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Manager
UNIFIED CREDIT TRUST, created under
a Declaration of Trust dated
December 6, 1988, by its Trustee:
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxxx, Trustee
